A Few Thoughts on the Second Circuit’s DOMA Decision

This week a divided panel of the U.S. Court of Appeals for the Second Circuit held that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional. Section 3 is the portion of DOMA barring federal recognition of same-sex marriages, even where recognized under state law. In this case, Windsor v. United States, the question was whether a surviving spouse could claim a the spousal deduction on her federal taxes. Although her state of domicile recognized her marriage, under DOMA the federal government cannot. The opinion was written by Chief Judge Dennis Jacobs, joined by Judge Christopher Droney. Judge Chester Straub dissented. As others have noted, it’s interesting that the majority was written by a very well-respected Bush (41) nominee, while a Clinton nominee dissented. Dale and Ilya also commented on the decision below.

As someone who supports gay marriage but is unpersuaded by the argument that recognition of same-sex marriage is constitutionally required, I found Judge Jacobs’ opinion was quite strong. It is quite narrow in that it focuses on the alleged federal interest in an exclusively federal definition of marriage, noting that while such interests are insufficient to justify Section 3 of DOMA, it is not necessarily also the case that states lack sufficient interests to maintain the traditional definition of marriage as between one man and one woman.

The key move in Judge Jacobs’ opinion is concluding that sexual orientation is a “quasi-suspect” class justifying intermediate scrutiny. This requires the federal government to show that its policy is substantially related to an important governmental interest. I am not sure existing precedent calls for such heightened scrutiny here, particularly as the Supreme Court in Romer and Lawrence avoided this step. Nonetheless Judge Jacobs makes a plausible case.

Once he’s taken this step, it is quite clear that the federal government is going to lose. While there is little question that DOMA would satisfy traditional rational basis scrutiny (as Judge Straub explains in dissent), it is hard to argue that the federal government has an important interest in refusing to recognize such marriages. Marriages, after all, are performed and legitimated under state law. Seeking uniformity in the federal definition of marriage or paying less in survivor benefits, and the like, are insufficient to justify intermediate scrutiny. (Indeed, due to the marriage penalty, it’s likely that federal recognition of same-sex marriages would actually increase federal tax revenues.) Insofar as the federal government appealed to other interests, such as encouraging a traditional definition of marriage or “responsible procreation,” it’s hard to see how such concerns are the province of the federal government, rather than the states.

If Section 3 of DOMA is unconstitutional, this does not necessarily mean that state laws barring recognition of same-sex marriages are equally suspect. State governments arguably have interests in the definition of marriage greater than those of the federal government. Family law is the traditional province of state governments and the sorts of interests that can be claimed, such as encouraging traditional family structures for purposes of child-rearing, are more important to state governments than to the federal government. As a policy matter I find such arguments unconvincing, and I support state recognition of same-sex marriage, but it’s not clear to me such interests are necessarily insufficient to justify state policies that prefer traditional family structures.

As a final note, I think Judge Jacobs’ opinion makes it more likely that the Supreme Court will strike down Section 3 of DOMA when this issue finally comes before the Court. Indeed, the opinion provides a roadmap for a fairly minimalist holding against DOMA of the sort the current court might embrace.